Bad News Bears for Ohio Slip-and-Fall Plaintiffs: Sixth District Affirms Summary Judgment in Darah v. Coaching by Kurt, L.L.C.

November 2, 2016

The basic facts were as follows:

{¶ 2} On March 18, 2014, Sherrie was
working out with her personal trainer, Michael Yuschak, at a facility in
Maumee, Ohio, operated by [Coaching by Kut. L.L.C.]. As part of her routine,
Sherrie typically warmed up on the treadmill for a few minutes before lifting
weights. On that day, she was walking toward the treadmill when her foot caught
a “ripple” in the rubber floor, causing her to lose her balance and fall. As she
fell, Sherrie hit her left elbow on some weights. Sherrie suffered a fractured
left elbow and right wrist, both of which required surgery to repair. 

Sherrie filed a lawsuit in the Lucas County Common Pleas Court, the Defendant-Gym moved for summary judgment, and the Trial Court
granted summary judgment, dismissing the case. The Plaintiff (Sherrie) appealed.

It turned out that the “ripple” was caused by the gym’s corner-cutting,
sloppy workmanship in installing the gym flooring. The owner had her dad
install it, instead of hiring a professional (no idea what her dad’s
qualifications were). Her dad just installed the new flooring (presumably that
rubber-type carpeting) over the existing wood floor, which caused ripples to
come and go in different places. Both the owner and Plaintiff’s personal
trainer noticed the ripples right away, and they were never able to correct the
problem. The Plaintiff slipped on one of the ripples and hurt herself. Sounds
like the gym is in trouble, right?

Well, not necessarily. The “open and obvious” doctrine,
which is very strong in Ohio, can help a business avoid liability even if the
business was vastly negligent. Here is how Ohio law works on this issue, as
explained by the Sixth District:

{¶ 9} “In order to maintain a negligence action, the
plaintiff must show the existence of a duty, a breach of that duty, and that
the breach of that duty proximately caused the plaintiff’s injury.” Cincinnati
v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶
18.

{¶ 10} “In Ohio, the status of the person who enters upon
the land of another (i.e., trespasser, licensee, or invitee) continues to
define the scope of the legal duty that the landowner owes the entrant.” Gladon
v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d
287 (1996). Here, the parties do not dispute that Sherrie was on the premises
as an invitee. See id. (“Invitees are persons who rightfully come upon the
premises of another by invitation, express or implied, for some purpose which
is beneficial to the owner.”).

{¶ 11} “A shopkeeper ordinarily owes its business
invitees a duty of ordinary care in maintaining the premises in a reasonably
safe condition and has the duty to warn its invitees of latent or hidden
dangers.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788
N.E.2d 1088, ¶ 5. However, “[a] shopkeeper is not * * * an insurer of the
customer’s safety.” Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480
N.E.2d 474 (1985). Thus, a shopkeeper “owes no duty to persons entering those
premises regarding dangers that are open and obvious.” Armstrong at ¶ 5, citing
Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of
the syllabus. The underlying rationale is that “the open and obvious nature of
the hazard itself serves as a warning. Thus, the owner or occupier may
reasonably expect that persons entering the premises will discover those
dangers and take appropriate measures to protect themselves.” Id., quoting
Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).
“Whether a hazard is open and obvious must be determined on the facts in each
case.” Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 6th Dist. Lucas
No. L-08-1187, 2009-Ohio-6677, ¶ 68. “A hazard is considered to be open and
obvious when it is in plain view and readily discoverable upon ordinary
inspection.” Id.

The Court found that
the Plaintiff did not see the bubble before she fell, but she had seen other
bubbles in the flooring at the gym in the past (big problem for a slip-and-fall
plaintiff). She was looking at and talking to her personal trainer at the time
she fell (another problem). She testified that the gym was well-lit (another
fact defendants are quick to cite) and that her view of the floor was
unobstructed (ditto). Unfortunately, the opinion does not include a picture of the ripple as in

Lattimore v. K&A Market

.

{¶ 17} Upon our review of the record, we hold that there
are no genuine issues of material fact, and that the ripple was an open and
obvious condition. Although Sherrie testified that she would have not seen the
ripple if she had looked down, “[establishing] that a claim is barred under the
open-and-obvious doctrine does not require proof that the individual plaintiff
saw the defect. Rather, it requires proof that the defect was observable.”
Czepak v. Heiges, 2011-Ohio-5523, 968 N.E.2d 1027, ¶ 22 (6th Dist.), citing
Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, at ¶ 16. The fact
that the ripples or bubbles were well known to everyone at the facility,
including Sherrie, leads to the only reasonable conclusion that they were
readily discoverable upon ordinary inspection. Furthermore, “a shopkeeper is
under no duty to protect business invitees from dangers ‘which are known to
such invitee or are so obvious and apparent to such invitee that [she] may
reasonably be expected to discover them and protect [herself] against them.’”
(Emphasis added.) Paschal, 18 Ohio St.3d at 203-204, 480 N.E.2d 474, 11.
quoting Sidle, 13 Ohio St.2d 45, 233 N.E.2d 589, at paragraph one of the
syllabus. Therefore, because the hazard was an open and obvious condition,
appellee owed no duty to protect Sherrie from it.

Just one more observation – the Court states here that “[t]he fact that the ripples
or bubbles were well known to everyone at the facility, including Sherrie,
leads to the only reasonable conclusion that they were readily discoverable
upon ordinary inspection,” despite concluding earlier in the opinion that the
hazard at issue was just “the ‘ripple,’” as opposed to the general problem of
ripples popping up.

This case demonstrates crucial questions that plaintiff attorneys must ask of potential
clients prior to accepting representation in a slip-and-fall case: How exactly
were you injured? Had you ever been there before? How many times? When did you
first become aware of the hazard? What did you see before you fell? Where were
you looking at the time you fell? Was your view of the hazard obstructed? Were
you distracted for any reason? (“Attendant circumstances,” discuss in this blog post,

sometimes shield a plaintiff from the open-and-obvious doctrine.)

Contact The Durst Law Firm Today.

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